Birth control: Supreme Court’s women in scathing new dissent

The conservative majority of the U.S. Supreme Court told an evangelical college on Friday that it does not have to abide by an Affordable Care Act contraception requirement if it has a religious reason not to provide birth control to students and staff.

U.S. Supreme Court Justice Sonia Sotomayor. “Those who are bound by our decisions usually believe they can take us at our word. Not so today.”

The ruling, in the form of an emergency stay to Wheaton College, provoked a furious dissent from the three women who serve on the high court.

In its 5-4 Hobby Lobby decision, released Monday, the court majority ruled that some family-owned businesses do not have to provide birth control coverage if it runs against their religious beliefs. The majority opinion, by Justice Samuel Alito, suggested that a concession offered by the Obama administration to religious colleges might work for such businesses as Hobby Lobby.

Justice Sonia Sotomayor said the court is going back on a precedent that’s only three days old.

“Those who are bound by our decisions usually believe they can take us at our word: Not so today,” wrote Sotomayor in an opinion joined by Justices Elena Kagan and Ruth Bader Ginsburg.

“After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates (the Religious Freedom Restoration Act) as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, retreats from that position.”

Under the Affordable Care Act, Wheaton College does not have to pay for contraception coverage for its women students and staff.

It must, however, fill out EBSA Form 700, registering its religious objection. The form, in turn, allows health insurers or a third party to assume responsibility for birth control. (Insurance companies are willing, due to costs incurred when there is a pregnancy and birth.)

Wheaton, and other like-minded groups, have sued to say they should not have to fill out EBSA Form 700 — that it makes them complicit in contraception which contravenes their religious convictions.

The court’s majority ruling, issued on the eve of the Fourth of July, told Wheaton it only has to send a letter to the federal government outlining its religious objectives. It would be up to the federal government to tell insurers about providing coverage.

“Nothing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives,” said the order by the majority.

Sotomayor, in a 16-page opinion, stressed the rarity of the court’s emergency stay and questioned whether EBSA Form 700 is an undue burden on Wheaton College.

“Let me be absolutely clear,” she wrote. “I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s religious beliefs are substantially burdened — no matter how sincere or genuine that belief may be — does not make it so.”